Cartwright v. United States

• Decision Date: 31 August 2021
• Docket Number: Nos. 19-5852,s. 19-5852
• Citation: 12 F.4th 572
• Parties: Raymond CARTWRIGHT Jr., Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

12 F.4th 572

Raymond CARTWRIGHT Jr., Petitioner-Appellant,

v.UNITED STATES of America, Respondent-Appellee.

Nos. 19-5852

United States Court of Appeals, Sixth Circuit.

Argued: April 20, 2021

Decided and Filed: August 31, 2021

ARGUED: Jennifer Niles Coffin, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Knoxville, Tennessee, for Appellant. Luke A. McLaurin, UNITED STATES ATTORNEY'S OFFICE, Knoxville, Tennessee, for Appellee. ON BRIEF: Jennifer Niles Coffin, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Knoxville, Tennessee, for Appellant. Luke A. McLaurin, UNITED STATES ATTORNEY'S OFFICE, Knoxville, Tennessee, for Appellee.

Before: KETHLEDGE, STRANCH, and NALBANDIAN, Circuit Judges.

NALBANDIAN, Circuit Judge.

Raymond Cartwright Jr. is serving a twenty-four-year sentence under the Armed Career Criminal Act (ACCA). When Cartwright was last convicted and sentenced in 2005, seven of his past convictions qualified as violent felonies. But in 2015, the Supreme Court decided Johnson v. United States , 576 U.S. 591, 602, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), invalidating ACCA's residual clause. Johnson removed at least four of Cartwright's offenses from the category of violent felonies. Cartwright brought a habeas petition challenging his ACCA status by arguing that his remaining convictions for burglary and aggravated assault do not support his ACCA sentence. The district court held that, even after Johnson , Cartwright still had at least three ACCA predicates because his Tennessee first- and second-degree burglaries qualified as violent felonies. We hold that these crimes are not "generic" burglaries and therefore REVERSE the district court and REMAND for further proceedings.¹

Background

I.

ACCA provides a mandatory minimum sentence for those convicted of possessing a firearm as a felon who have at least three prior convictions for violent felonies and serious drug offenses:

In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g).

18 U.S.C. § 924(e)(1). ACCA defines a "violent felony" as "any crime punishable by imprisonment for a term exceeding one year" that:

• "(i) has as an element the use, attempted use, or threatened use of physical force against the person of another" (the "elements clause"); or

• "(ii) is burglary, arson, or extortion, involves use of explosives" (the "enumerated-crimes clause"); or

• "otherwise involves conduct that presents a serious potential risk of physical injury to another" (the "residual clause").

Id. at § 924(e)(2)(B). Any conviction that falls within this ACCA section can serve as a "predicate" offense that counts toward the required three prior felonies.

The Supreme Court held that the last of these three clauses—the residual clause—is so vague that to apply it violates due process.

Johnson , 576 U.S. at 602, 135 S.Ct. 2551. The Court also held that Johnson ’s holding is retroactive to criminal cases on collateral review. Welch v. United States , 578 U.S. 120, 136 S. Ct. 1257, 1265, 194 L.Ed.2d 387 (2016). This means that a prisoner serving a sentence under ACCA whose career criminal status rested on the residual clause may raise a Johnson claim in a habeas petition. See 28 U.S.C. § 2255(h)(2).

Although the enumerated-crimes clause includes the word "burglary," not every burglary falls inside the enumerated-crimes clause. 18 U.S.C. § 926(e)(2)(B)(ii). ACCA fails to define what counts as a burglary, and state definitions can vary widely. To cabin the reach of the enumerated-crimes clause, the Supreme Court held that only "generic" burglary counts as a predicate under the enumerated-crimes clause. Taylor v. United States , 495 U.S. 575, 599, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Generic burglary has the basic elements of "unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime." Id.

In determining whether a burglary is generic, courts look only at the elements of the offense. This categorical approach focuses "solely on whether the elements of the crime of conviction sufficiently match the elements of generic burglary, while ignoring the particular facts of the case." Mathis v. United States , ––– U.S. ––––, 136 S. Ct. 2243, 2248, 195 L.Ed.2d 604 (2016) ; Taylor , 495 U.S. at 601–02, 110 S.Ct. 2143. Any burglary offense with elements that match or are narrower than the elements of generic burglary can be a predicate under the enumerated-crimes clause. Id . at 599, 110 S.Ct. 2143. But if the burglary offense can include conduct that is not generic burglary, convictions under that statute cannot be ACCA predicates. In determining the elements of a state-law crime, we defer to the state supreme court's determination of the state's law. See Johnson v. United States , 559 U.S. 133, 138, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010).

II.

A jury convicted Cartwright of being a felon in possession of a firearm in 2005, a violation of 18 U.S.C. § 922(g). And his Presentence Report (PSR) concluded that Cartwright qualified as a career criminal under United States Sentencing Guideline § 4B1.4(b)(3)(B) and the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e).

The PSR characterized seven of Cartwright's past convictions as "crimes of violence": "Third Degree Burglary (1980), Aggravated Assault (1980), First Degree Burglary (1980), Second Degree Burglary (1981), two Felonious Escapes (1982), and Incest (1991)." (PSR at 7, ¶ 33.) Elsewhere in the PSR, a bold indicator followed six of these seven entries, labeling them as predicate offenses with a statement like, "This is a predicate conviction for Armed Career Criminal purposes ." (Id. at 7–13, ¶¶ 38, 40, 42–45, 53.) Only Cartwright's aggravated assault conviction did not have a similar indicator. The district court determined that Cartwright's guideline range was 235 to 293 months, and it sentenced him to 288 months. On direct appeal, Cartwright challenged only the sufficiency of the evidence, and we affirmed. United States v. Cartwright , 221 F. App'x 438, 439 (6th Cir. 2007) (per curiam). Cartwright then filed a § 2255 petition in 2008 that the district court denied. Cartwright v. United States , No. 1:04-CR-33, 2011 WL 6003659 (E.D. Tenn. Dec. 1, 2011).

In May 2016, after the Supreme Court decided Johnson , Cartwright moved for an order authorizing the district court to consider his second or successive habeas petition.

The government responded that Cartwright met the § 2255(h)(2) gatekeeping requirements because he relied on Johnson . But it also argued that the court should deny the petition as meritless because his three prior burglaries qualified as predicates under ACCA's enumerated-offense clause, which meant Johnson did not affect Cartwright's sentence. Cartwright, proceeding pro se, later moved to amend his petition to request that the court apply the Mathis categorical approach to his burglary offenses. See Mathis , 136 S. Ct. at 2248. And he argued in his reply to the government's response that all three of his burglary convictions were under statutes broader than generic burglary. A panel granted the petition and authorized the second or successive motion on the Johnson question.

In the district court, Cartwright's habeas petition argued that Johnson invalidated his ACCA sentence because he had fewer than three—and perhaps zero—remaining convictions that qualified as violent-felony ACCA predicates. Cartwright also requested counsel. The government again responded that Johnson did not affect Cartwright's sentence because his "three prior Tennessee burglary convictions categorically qualify as violent felonies under the ACCA's enumerated-offense clause and are thus unaffected by Johnson ."

Through counsel, Cartwright then submitted a supplemental habeas petition, arguing that Cartwright's third-degree burglary, aggravated assault, felonious escape, and incest convictions no longer qualified as ACCA predicates under Johnson . The government responded to this as well, conceding that our decision in Cradler affected Cartwright's third-degree burglary conviction but not his first-degree burglary, second-degree burglary, and aggravated assault convictions. See Cradler v. United States , 891 F.3d 659, 671 (6th Cir. 2018). The government asserted that "Tennessee's definitions of first-degree burglary and second-degree burglary precisely track the generic definition of burglary." Cartwright replied, arguing that his aggravated assault conviction was based on the now-invalid residual clause and that his first-degree burglary and aggravated assault offenses did not occur on different occasions, meaning that they cannot count as two separate predicates under 18 U.S.C. § 924.

The district court rejected Cartwright's claims. Cartwright v. United States , No. 1:16-CV-517-CLC, 2019 WL 2453660 (E.D. Tenn. June 12, 2019). It held that the Tennessee first- and second-degree burglary statutes were generic, making Cartwright's convictions ACCA predicates. Id. at *3. His third-degree burglary conviction, however, was not an ACCA predicate under Cradler . It also held that Cartwright's felonious escape and incest convictions were not ACCA predicates. Id. at *3–4. On the aggravated assault conviction, the court found that Cartwright was convicted under the part of Tennessee's statute that qualified as an ACCA predicate. Id. at *4–5. It also addressed his argument that he did not commit the aggravated assault and first-degree burglary on different occasions, noting that they involved different co-defendants and...